Kamana v Police

[2015] NZHC 2933

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000283 [2015] NZHC 2933

BETWEEN

EMILE PILTZ KAMANA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	23 November 2015
Appearances:	G Haydn for Appellant N Dobbs for Respondent
Judgment:	23 November 2015

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 23 November 2015 at 4.45pm

pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ……………………………..

Solicitors/counsel: G Haydn, Auckland

Kayes Fletcher Walker Ltd, Auckland

KAMANA v NZ POLICE [2015] NZHC 2933 [23 November 2015]

[1]      The appellant, Mr Kamana, was found guilty by Judge G A Andrée Wiltens in the District Court at Manukau on 7 August 2015 of refusing to permit a blood specimen to be taken. That is an offence pursuant to s 60(1)(a) of the Land Transport Act 1998.   Mr Kamana was sentenced to a fine of $750, and disqualified from holding a driver’s licence for a period of six months.

[2]      Mr Kamana now appeals his conviction.  He argues that he was not given the required 10 minute period to consider whether or not to elect to have a blood test to assess the proportion of alcohol in his blood.

Factual background

[3]      At about 1.30am on 26 October 2014, Mr Kamana was stopped while driving by the police.  An evidential breath test was administered at 1.52am.  The evidential breath alcohol test recorded that Mr Kamana had 598 micrograms of alcohol per litre of breath.  At the time the statutory limit before an offence was committed was 400 micrograms of alcohol per litre of breath.

[4]      The police constable – a Constable Young – informed Mr Kamana that he had failed the evidential breath test.  This occurred at 2.02am.  At 2.05, Mr Kamana was advised that:

(a)      if he did not request a blood test within 10 minutes, the evidential breath test could of itself be conclusive evidence of an offence against the Land Transport Act;

(b)if he were to undergo a blood test, he must request one within ten minutes;

(c)      if he underwent a blood test, the result of the evidential breath test could not be used in Court proceedings, but the blood test might be evidence of an offence against the Land Transport Act;

(d)if he chose not to have a blood test, that he might not be able to defend the proceedings against him in relation to his breath alcohol

reading on the basis that there was or may have been an error in the result of the evidential breath test.

Mr Kamana signed a form, recording that this advice was given to him.

[5]      Further, at 2.06am Mr Kamana was given his rights under the New Zealand Bill of Rights Act 1990.  Mr Kamana indicated that he did not wish to speak to a lawyer.

[6]      Mr Kamana then immediately elected to take a blood test.  This election was also made at 2.06am.

[7]      A nurse was called.  Constable Young said in evidence that Mr Kamana did not want to wait for the nurse. When the nurse arrived, Mr Kamana was requested to give a blood specimen.  This was timed at 2.14am.  He refused to do so.  His refusal was timed at 2.16am.   Mr Kamana sought to return to the evidential breath test result. He was told that he could not do so as he had elected to have a blood test.  He was warned that he could be arrested for refusing to provide a blood specimen. There was a brief conversation in relation to this issue.  It was Constable Young’s evidence that Mr Kamana’s primary concern was with the speed of the process.  Mr Kamana told Constable Young that he was not going to give blood.

[8]      Constable Young did not record a time for the commencement of the 10 minute period.   Constable Young gave evidence, and maintained under cross- examination,  that  Mr Kamana unequivocally made an  election  to  undertake the blood test, and that he did not change his mind until he realised that he would have to wait for a nurse.   He accepted that the conversation between himself and Mr Kamana was “more or less unbroken” after the evidential breath test result was obtained,  and  that  it  continued  “more  or  less  seamlessly”  after  he  advised  Mr Kamana of his rights.

District Court Judge’s decision

[9]      Judge Andrée Wiltens held that the 10 minute period did not commence, because, once he had been told of the evidential breath reading and of his rights, Mr

Kamana immediately asked Constable Young a number of questions which resulted in him saying that he wanted to take a blood test.  Judge Andrée Wiltens considered that in those circumstances there was no need for the 10 minute consideration period. He took the view that Mr Kamana had asked for a blood test at the outset but then changed his mind, that that was a refusal to supply, and that therefore, the charge under s 60(1)(a) of the Land Transport Act was proved beyond reasonable doubt.

Submissions

[10]     Mr Haydn, appearing on behalf of Mr Kamana, submitted that without a valid election, there were no grounds upon which a blood sample could be required by Constable Young, so that there was no refusal as required by s 60(1)(a) of the Land Transport Act.  He argued that the election relied upon by the police had been made prior to the commencement of the 10 minute period and that Mr Kamana was simply thinking out loud when he spoke.   He noted that the election was followed by a number of questions and by a period of eight minutes only, during which time the conversation between Mr Kamana and Constable Young continued, before a formal request under s 72 of the Land Transport Act was made.  He argued that Mr Kamana did not receive any time within which to consider his position, and that he was subjected to undue time pressures.  He submitted that the purpose of the 10 minute consideration period had been eroded, and that there was no valid election by Mr Kamana.

[11]     Mr Dobbs for the respondent submitted that the Act does not require that a person be given 10 minutes to consider their position, once they have made an election to give a blood specimen.  He argued that Mr Kamana was not subjected to undue time pressure, and that he had made a prompt and valid election to have a blood test immediately after he was advised of his right to do so.  In the alternative, Mr Dobbs argued that even if Constable Young was required to commence the 10 minute period, there was no undue time pressure, and there had been reasonable compliance with the statutory procedures.

Analysis

[12]     Section 70A, as it stood at the time the charge was laid, provided as follows:1

(1)       If  the  result  of  a  person’s  evidential  breath  test  appears  to  be positive, the person has the right, within 10 minutes of being advised by an enforcement officer of the matters specified in section 77(3)(a) (which sets out the conditions of the admissibility of the test), to elect to have a blood test to assess the proportion of alcohol in his or her blood.

[13]     The right to elect to have a blood test, and the right to be advised of that option, exist to provide protection against potential errors in the breath screening process, or in evidential breath tests.2    The purpose of the 10 minute consideration period is to enable a suspect to have adequate time, without undue pressure, in which to  make  up  his  or  her  mind  about  a  blood  test.3      A  person  must  be  given uninterrupted time to make a considered decision.  Whether such time has or has not been given is a matter of fact and degree in each case.4

[14]     The Act permits the election to be made at any time “within 10 minutes” of

the statutory advice being given by the enforcement officer.

[15]     Here it is accepted by Mr Haydn that Constable Young fully advised Mr Kamana of his rights.  It is common ground that Mr Kamana said that he wanted to give a blood test immediately after that advice was given.5

[16]     Mr Haydn suggested Mr Kamana was simply thinking out loud.   I cannot accept that assertion.  It is inconsistent with the evidence of Constable Young.  When this suggestion was put to him in cross-examination, he denied that Mr Kamana was thinking out loud; rather he said that it “was clear that he (Mr Kamana) wanted to go with the blood procedures.  It wasn’t a question in regard to the blood procedures.  It was him stating he wanted the blood test over the breath test”.  There was no other

evidence to contradict this statement.

1      Section 70A has subsequently been amended – see s 10 of the Land Transport Amendment Act

(No 2) 2014.

2      Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [11].

3      Lawrence v Ministry of Transport [1982] 1 NZLR 219 (CA) at 221.

4      Stewart v Police HC Auckland CRI-2005-404-155, 26 October 2005 at [18].

5      Judge Andrée Wiltens found that Mr Kamana asked Constable Young a number of questions before he said that he wanted to take a blood test. That finding is inconsistent with the evidence.

[17]     Mr Kamana could have taken advantage of the full 10 minute opportunity to consider his position.  He chose not to do so.

[18]     It is noteworthy that an election can be made at any time within the 10 minute period.  The Act does not require that an appellant be given the full 10 minutes, or the remainder of any 10 minute period to consider his or her position once he or she has made the election.6

[19]     This appeal can be determined on one of two bases – either the 10 minute period started immediately after Constable Young told Mr Kamana of his rights and terminated as soon as the election was made, or Mr Kamana waived the 10 minute consideration by immediately deciding to have a blood test before the 10 minute period commenced.

[20]     In my judgment, it is preferable to say that Mr Kamana waived the 10 minute consideration period by immediately electing to have a blood test after he was fully advised of his rights. Mr Kamana’s election to have a blood test was unequivocal, and given the evidence it cannot be argued that he was still considering his options when he made the election.  Having elected to undergo the blood test, he cannot now argue that he should have been given further time to reconsider whether to exercise his rights. That is not the purpose of the 10 minute requirement.

[21]     The position might be different if Mr Kamana had declined to give the blood test immediately after receiving the relevant advice from the Constable, and not then been given a 10 minute period.  It would then be arguable that he had been denied the protection afforded by the 10 minute consideration period.  That however is not the case.

[22]     Nor can it be argued that Mr Kamana was put under undue time pressure.  Mr Kamana was told of his right to have 10 minutes within which to consider whether or not to elect to have a blood test.  He was further told that the 10 minute period would be uninterrupted if he wished to take advantage of it, and he was given the opportunity to ask Constable Young any questions he had before the 10 minute

period formally commenced.  He immediately made his election before he asked any questions.   There is  nothing in  the  evidence to  suggest  that  he  was  under any pressure to make the election at the time he did so.

[23]     Mr Haydn relied on the decision in Wren v Police.7   In that case the attending officer engaged the driver in conversation on unrelated matters for 15 minutes after advising him of his right to elect a blood test.   It was held that this interruption interfered with the 10 minute period which should have been made available to the driver.

[24]     Wren however can be readily distinguished from Mr Kamana’s case.   Mr Kamana was not distracted by the attending officer.  Mr Kamana made his election to have a blood test immediately after the advice was given.   There was no interruption – deliberate or otherwise – of the time available to Mr Kamana to reflect.   Mr Kamana could have taken advantage of the 10 minute period if he wished to do so.  He chose not to do so.

[25]     Given the views I have formed, I am not required to decide whether or not there was reasonable compliance with the statutory provision, as provided for by s 64(2).   I do however record that even if I had considered that there had been a breach of the relevant provisions, in my view there was reasonable compliance.

[26]     The appeal is dismissed.

[27]     I record that Mr Haydn appeared pro bono on the basis that this case involved a question of legal importance.  That is in the best traditions of the bar and I thank

him for his submissions.

Wylie J